Bevilacqua v. CRP/Extell Parcel I, L.P.

• Decision Date: 03 March 2015
• Parties: Chris BEVILACQUA, Plaintiff–Appellant, v. CRP/EXTELL PARCEL I, L.P., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

?126 A.D.3d 429
2 N.Y.S.3d 347
2015 N.Y. Slip Op. 01757

Chris BEVILACQUA, Plaintiff–Appellant,
v.
CRP/EXTELL PARCEL I, L.P., et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

March 3, 2015

Held & Hines, LLP, New York (James K. Hargrove of counsel), for appellant.

Boies, Schiller & Flexner LLP, Armonk (Jason C. Cyrulnik of counsel), for respondents.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered July 11, 2013, which granted defendants' motion to dismiss the complaint on the grounds of res judicata, collateral estoppel, and failure to state a cause of action, unanimously affirmed, without costs.

Plaintiff's claims for return of his down payment and rescission of his condominium unit purchase agreement were precluded by the Attorney General's prior determination against him and the article 78 proceeding dismissing his challenge to it, which barred the claims that he brought and those that he could have brought ( see Sweeny v. New York City Dept. of Health & Mental Hygiene, 91 A.D.3d 420, 421, 935 N.Y.S.2d 511 [1st Dept.2012], lv. denied 19 N.Y.3d 802, 2012 WL 1504758 [2012] ). Contrary to plaintiff's claimed understanding, neither the administrative determination nor the judgment dismissing his petition contained language authorizing the instant action. We reject plaintiff's contention that the administrative proceeding was not sufficiently judicial to

[2 N.Y.S.3d 348]

warrant according it preclusive effect; as in related cases involving purchasers seeking rescission and return of their down payments for units in the same condominium, there were no issues that would have been illuminated by an evidentiary hearing or cross examination ( see Coffey v. CRP/Extell Parcel I, L.P., 117 A.D.3d 585, 986 N.Y.S.2d 448 [1st Dept.2014], lv. dismissed 24 N.Y.3d 934, 993 N.Y.S.2d 545, 17 N.E.3d 1142 [2014]; Matter of CRP/Extell Parcel I, L.P. v. Cuomo, 101 A.D.3d 473, 957 N.Y.S.2d 293 [1st Dept.2012] ). Upon our review of the complaint, we agree with the motion court that the fraud claims are preempted by the Martin Act and the regulations promulgated thereunder ( see Assured Guar. [UK] Ltd. v. J.P. Morgan Inv. Mgt. Inc., 18 N.Y.3d 341, 353, 939 N.Y.S.2d 274, 962 N.E.2d 765 [2011]; Berenger v. 261 W. LLC, 93 A.D.3d 175, 184, 940 N.Y.S.2d 4 [1st Dept.2012] ).

We have considered plaintiff's other contentions and find them unavailing.

ACOSTA, J.P., ANDRIAS, SAXE, RICHTER, JJ., concur.